Posted by: Patricia Salkin | May 10, 2014

OR Appeals Court Upholds Commercial Trucking Operation as Home Occupation

Fregulia owned a four-acre parcel in the city of Island City that was zoned “Low Density Residential” (“R-E”). There was a single-family dwelling and a 4,500-square-foot workshop on the parcel. Fregulia owned a commercial trucking operation that has six semi-trucks along with a number of trailers. Since 2008, Fregulia had operated his commercial trucking operation from the Property without obtaining a home occupation permit. In response to neighbors’ complaints, Fregulia eventually applied for a home occupation permit. Fregulia proposed to operate the commercial trucking business from a 600-square-foot space in the 4,500-square-foot workshop, and to engage one nonfamily member employee to maintain and repair his trucks within that space.

The City Council approved the application with conditions inclouding: limiting the use of the workshop to 600 square feet for maintenance of the trucks; prohibiting more than one truck on the site at any time; prohibiting outdoor storage of trailers, parts or materials; prohibiting use of maintenance machinery outdoors; limiting truck trips to one outgoing trip and one incoming trip per truck per day; and limiting truck maneuvering during non-business hours to portions of the site within 100 feet of the adjacent road.

The Stevens, adjacent property owners, appealed alleging that the City “erred by finding that the home occupation [was] secondary to the residence,” as was required by the City’s Development Code for home occupation approval. In support, the Stevens asserted that the use consisted of: six semi-trucks making daily trips in and out of the residential property; a full-time mechanic; multiple supply vendors; and maintenance with the use of air compressors, air ratchets, fork lifts, and steam cleaners. Therefore, they maintained that “[b]y any empirical standard, the main use of the [P]roperty [was] a commercial trucking operation.” On the other hand, the City, in concluding that it was a home occupation, determined: the owner and his family resided in the home on site; there were no customers or product vending on the property; there was no business sign; and the City had imposed a condition limiting truck maintenance activities to working hours. Therefore, the City concluded the property was being primarily uses as a residence and the proposed use was merely secondary thereto.

The Land Use Appeals Board remanded the City’s decision approving the home occupation but denied Stevens’ challenge to the City’s conclusion that the occupation was secondary to the main use of the Property as a residence. On appeal, the Court found sufficient evidence supporting the Board’s finding that the proposed home-occupation use of a commercial trucking operation was secondary to the residential use of the Property. Although the court noted that “a commercial trucking operation is not the sort of occupation that commonly occurs within the home,” the Board’s decision was based on substantial evidence.

Stevens v City of Island City, 2014 WL 465294 (OR App. Ct. 2/5/2014).

The opinion can be accessed at: http://www.publications.ojd.state.or.us/docs/A155003.pdf


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